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2023 MarsdenLR 76
INDUSTRIAL COURT MALAYA JOHOR BAHRU
SIVANESAN DURAIRAJAH – Appellant
Versus
AEGIS BPO MALAYSIA SDN BHD – Respondent
Award No: 774 Of 2023 [Case No: 16/4-2489/21]
Absenteeism without prior approval constitutes just cause for dismissal in employment law.
Headnote:The Director General of Industrial Relation Malaysia referred this case to the Industrial Court under s 20(3) of the Industrial Relation Act 1967 concerning the dismissal of the Claimant by the Respondent. The Claimant claimed unfair dismissal due to his absence attributed to a disputed show cause letter, while the Respondent argued that the Claimant abandoned his position by failing to attend work without approval. The Court determined the dismissal was justified under the relevant provisions of the Employment Act and established that absence without authorization constitutes just cause for dismissal. The Claimant's claims for reinstatement were rejected, and the dismissal was found to have been with just cause.
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What is the standard and burden of proof for just cause in dismissal due to absenteeism?
What constitutes abandonment of employment when an employee is absent without leave?
Is absenteeism without prior approval a just cause for dismissal under the Employment Act and Industrial Relations Act?
| Table of Content |
|---|
| 1. claim of unfair dismissal due to absenteeism. (Para 4 , 5 , 6 , 9 , 10) |
| 2. lack of evidence for formal resignation leads to dismissal. (Para 12 , 19 , 47 , 50) |
| 3. policy against unjust dismissal must adhere to company procedures. (Para 25 , 27 , 38 , 40 , 42) |
| 4. burden of proof lies with the employer in dismissal cases. (Para 32 , 34 , 72) |
(A) Reference
[1] This is a Director General of Industrial Relation Malaysia reference to the Industrial Court under s 20(3) of the Industrial Relation Act 1967 ( IRA ) made on 13 August 2021 for an Award in respect of the dismissal of Sivanesan A/L Durairajah against Aegis BPO Malaysia Sdn Bhd.
(B) Introduction
[2] The parties in this matter filed their respective written submissions and submissions in reply received on 13 February 2023, 20 February 2023, 28 February 2023 and 6 March 2023.
[3] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:
a) The Claimant's Statement of Case dated 30 November 2021.
b) The Respondent's Statement In Reply dated 23 February 2022.
c) The Claimant's Rejoinder dated 9 March 2022.
d) The Respondent's Bundle of Documents marked as COB 1
e) The Claimant's Witness Statement marked as CLWS 1.
f) The Respondent's Witness Statement by Swapnil Rajesh Adsul marked as COWS 1.
g) The Respondent's Witness Statement by Koh Hui Lee marked as COWS 2.
(C) The Claimant's Pleaded Case
[4] CLW1 narrated the events leading to his dismissal. He first stated that he commenced employment with the company on 15 May 2017 as a Team Leader and his last drawn salary was RM3,500.00. (Refer to pp 3-7, COB).
[5] The Claimant averred that he was given a show cause letter dated 16 December 2020 by the company regarding a salary delay incident which was due to his team members. (Refer to p 18, COB).
[6] In the said show cause letter, the company had requested the Claimant to provide an explanation on his failure to explain and communicate to his team on a salary delay incident resulting his team members not reporting to work on consecutive days.
[7] The Claimant contended that the salary delay had brought dissatisfaction and grouses amongst the team members as they had financial commitments to fulfill and was unable to do so due to the said salary delay. As a result of this, the team members had refused to come to work and this had caused disruption to the company's operation.
[8] The Claimant averred that as a Team Leader, he had tried his best to convince and assure his team that the salary will be paid duly. The Claimant averred that he had taken all necessary measures to communicate to his team members on the salary delay. (Refer to p 20, COB).
[9] The Claimant contended that the salary delay was entirely caused by the company's incompetence and that the issuance of the show cause letter dated 16 December 2020 on him was unnecessary.
[10] The Claimant maintained that the company had tried to push the blame on him and upon replying to the show cause letter on 29 December 2020, the Claimant was absent from work from 30 December 2020 as he felt disappointed and demotivated with the company for issuing the said letter. (Refer to pp 19-20, COB).
[11] The Claimant further averred that he had tendered his resignation on the 17 January 2021 but was not accepted by the company.
[12] The Claimant did not dispute that he had not attend work from 30 December 2020 until 3 January 2021 as he felt victimized by the company for blaming him on the salary delay incident.
(D) The Respondent's Pleaded Case
[13] The company is a global provider of technology enabled business process outsourcing solutions and provide services of omnichannel customer care, customer acquisition, order processing, technical support, receivables management and analytics through automation, voice, chats, email, social media and IVR to clients.
[14] The Claimant commenced employment with the company on 15 May 2017 as a Team Leader and hel
